How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be negotiated, the conspicuousness of the negotiable, actually negotiated, or waiver, any disparity in bargaining conspicuous. As I have argued elsewhere, the Federal Arbitration Act was never intended to permit companies to impose arbitration on unknowing consumers and employees, but rather was merely intended to allow two sophisticated businesses to enter into pre-dispute arbitration agreements.
16 Ohio St. J. On Disp. Resol. 669 (2001).
Sternlight, Jean R., "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" (2001). Scholarly Works. Paper 272.